Judge Serena R. Murillo, Case 20STCV25370 2022-10-12 Tentative Ruling

Judge: Serena R. Murillo, Case: 20STCV25370, Date: 2022-10-12 Tentative Ruling

Case Number: 20STCV25370 Hearing Date: October 12, 2022 Dept: 29

Catalina Escalera v. Wells Fargo & Co., et al.

Motion to Compel Attendance at Deposition and Request for Sanctions filed by Defendant Lorna M. Auerbach as Trustee of the Lorna Merrill Auerbach 1992 Trust

TENTATIVE

Defendant Lorna M. Auerbach as Trustee of the Lorna Merrill Auerbach 1992 Trust’s motion to compel the deposition of Plaintiff is GRANTED. Plaintiff Catalina Escalera is ordered to appear for deposition within 30 days of this order. The request for sanctions is GRANTED. Plaintiff and counsel of record Christopher Mesaros are ordered to pay monetary sanctions in the amount of $997.90, jointly and severally, within 30 days of this order.

Legal Standard

Any party may obtain discovery … by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.)

Where a party objects to the deposition, the proper remedy is an objection under Code of Civil Procedure section 2025.410. If such an objection is made within three calendar days before the deposition date, the objecting party must make personal service of that objection. (Code Civ. Proc. 2025.410, subd. (b).)

CCP section¿2025.450(a) provides:¿“If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for¿inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450(a).)

CCP section¿2025.450(b) provides:¿“A motion under subdivision (a)… shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”¿ (Id., § 2025.450(b).)

Discussion

On September 23, 2021, Defendant served its notice of taking deposition of Plaintiff, scheduling the deposition for October 6, 2021. (Attia Decl., ¶ 2; Ex. A.) Plaintiff did not serve any objections in response to the deposition notice. (Id.) On October 1, 2021, five days before the scheduled deposition and without explanation, Plaintiff’s counsel advised Defendant’s counsel Plaintiff would not be appearing for her deposition on October 6. (Id., ¶ 3; Ex. B.) On October 14, 2021, Defendant served its amended notice of taking deposition of Plaintiff, to be taken on November 11, 2021. (Id., ¶ 5; Ex. D.) On November 9, 2021, two days before the scheduled deposition, Plaintiff served an untimely objection to Defendant’s deposition notice on the grounds that Plaintiff filed DOE amendments naming Superior Grocers and Kennedy-Wilson Properties, LTD as defendants and neither had yet appeared. (Id., ¶ 6; Ex. E.) On January 11, 2022, Defendant served its second amended notice of taking deposition of Plaintiff, to be taken on January 24, 2022. (Id., ¶ 9; Ex. H.) On January 24, 2022, less than two hours before Plaintiff’s deposition, Plaintiff’s counsel informed Defendant’s counsel that Plaintiff’s deposition would not proceed. (Id., ¶ 10; Ex. I.) Plaintiff did not appear for her deposition and Defendant’s counsel took a notice of non-appearance. (Id., ¶ 11; Ex. J.) On February 9, 2022, Defendant’s counsel requested Plaintiff provide her availability within the next 30 days. (Id., ¶ 11; Ex. K.) On February 11, 2022, Plaintiff’s counsel provided four dates in March 2022. (Id.) On February 14, 2022, Defendant served its third amended notice of taking deposition of Plaintiff, to be taken on March 3, 2022. (Id., ¶ 12; Ex. L.) On March 1, 2022, two days before Plaintiff’s deposition, Plaintiff’s counsel again informed Defendant’s counsel that Plaintiff’s deposition would not be going forward because Defendant Superior Grocers had not filed its answer. (Id., ¶ 13; Ex. M.)

As Plaintiff was properly served with the notice of deposition, did not properly object under CCP section 2025.410, failed to appear, and failed to file an opposition to this motion, the motion to compel Plaintiff to appear for deposition is GRANTED. Plaintiff is ordered to appear for deposition within 30 days of this order.

Sanctions

If a motion under CCP section¿2025.450(a) is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP section¿2025.450(g)(1).)

As the motion to compel Plaintiff’s deposition is granted, and Plaintiff has not filed an opposition to explain any basis in failing to appear, Defendant’s request for sanctions is granted, but in a reduced amount due to the simplicity of the motion and because there was no opposition. Thus, the Court imposes sanctions against Plaintiff and counsel of record Christopher Mesaros, in the amount of $997.90 ($190 per hour, for 1 hour, $747.90 in court reporter fees, and $60 in filing fees), jointly and severally, to be paid within 30 days of this order

Conclusion

Accordingly, Defendant’s motion to compel the deposition of Plaintiff is GRANTED. Plaintiff Catalina Escalera is ordered to appear for deposition within 30 days of this order. The request for sanctions is GRANTED. Plaintiff and counsel of record Christopher Mesaros are ordered to pay monetary sanctions in the amount of $997.90, jointly and severally, within 30 days of this order.

Moving party is ordered to give notice.